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Sunday, 9 April 2017

When brain mapping and Narco analysis tests reports are not admissible in evidence?

It is incidentally noticed that it is not in dispute that the appellant was subjected to brain mapping and Narco Analysis Test, but the person who had conducted the test was not tendered as a witness before the court and none has been examined to explain the report of the brain mapping and Narco Analysis Test.

Admittedly, the bulk of the allegations against the appellant are hence not on the basis of independent material evidence, but is apparently on the basis of revelations said to have been made by the appellant, while in a drug induced state when polygraph, brain mapping and narco analysis tests were resorted to in extracting information from the appellant. Though seemingly incriminating reports are placed on record, the person who had conducted these tests was never examined as a witness. However, the reports are marked as Exhibits P-95 to P-97. The said reports cannot also be relied upon as the same is violative of the law as laid down by the Apex Court in Selvi & others v. State of Karnataka, MANU/SC/0325/2010 : AIR 2010 SC 1974. Compulsory involuntary administration of the Narco-analysis, Polygraph examination and the Brain Electrical Activation Profile violates the right against self incrimination enumerated in Article 20(3) of the Constitution, as the subject does not exercise conscious control over the responses during the administration of the test.

Hence, it cannot be said that the prosecution had made out a case on the basis of the evidence on record that the appellant was guilty of any offence punishable under Section 121, 122 or 124-A of the IPC.

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

Criminal Appeal No. 3645/2010

Decided On: 20.07.2016

Abdul Raheman

Vs.

The State of Karnataka

Coram:

Anand Byrareddy and L. Narayana Swamy, JJ.

Citation: 2017 CRLJ(NOC)28 Kar

1. Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor.

2. The appellant was the accused before the Trial Court. The case as alleged against the appellant by the prosecution is that on 30.03.2006, at about 3.50 p.m., the accused is said to have alighted from the Chennai-Mumbai train, at the Gulbarga Railway Station. It is stated that the Police Inspector, one D.C. Nandakumar, of the Station Bazaar Police Station was said to be on special duty along with a squad of officers and he had spotted the accused and on suspicion, had accosted him and on a search of his luggage, it is claimed that the accused was found in possession of a pistol, two hand grenades, books in Urdu and audio and video cassettes. It is claimed that the accused was further questioned as to his identity and background and the accused is said to have stated that he was originally a resident of Mumbai and that he was now residing in Goa and was visiting Gulbarga. And that he was dealing in children's toys.

Not being satisfied with his explanation and on further interrogation and investigation, a case had been registered against the accused - appellant for offences punishable under Sections 121, 122, 124-A of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC, for brevity) and Sections 10, 13, 18, 20, 21 and 23 of the Unlawful Activities (Prevention) Act, 1967 (Hereinafter referred to as the 'UAP Act', for brevity), and under Sections 4 and 5 of the Explosive Substances Act, 1908 (Hereinafter referred to as the 'ES Act', for brevity) and Section 25 of the Arms Act, 1959.

It was alleged by the prosecution that the appellant had after completing the Pre-University course at Mumbai, he had also learnt typing and undergone computer training and he had travelled to Oman in May 2001 and returned to Goa in November 2001 and again went to Daman on 5.2.2002, where he had been indoctrinated about Jihad by Islamic leaders at centres there. And claiming to be a citizen of Pakistan, is said to have visited Pakistan. He had been trained at a Lashkar-e-Toiba (LeT) Training Centre at Rawalpindi which is said to be an outlawed terrorist outfit. Thereafter, he had studied the Kuran, Adis and had received training in handling sophisticated fire arms of all types. He had also been trained in disseminating information, inciting hatred against India via the internet and he had been trained in cartography and wireless radio transmission operation. Thereafter, in the year 2004, he had illegally entered Mumbai and had travelled to several cities including Hyderabad, Zahirabad and Gulbarga and had several financial transactions involving money transfers from outside the country, which was used as funding to recruit members for the LeT and was actively planning to cause destruction to dams, thermal power stations and other facilities in India. He was also travelling and visiting Mosques where he would deliver provocative speeches professing Jihad to the congregations. In December 2005, he is said to have attempted to influence youth belonging to the Ahule Hadis Muslim community of Gulbarga inciting them to fight against India in the name of Jihad and to join the LeT organization. He is even said to have met leaders of the said organization at Bangladesh, apart from travelling to Ahmedabad in March 2006 to bring explosives and grenades with a plan to carry out terrorist attacks and he was returning to Gulbarga, when he was apprehended.

After further proceedings and upon committal to the Court of Sessions, the court had framed charges against the accused, who had pleaded not guilty and claimed to be tried. The prosecution which had named 60 witnesses, had examined 36 of them, as the other witnesses could not be secured as they were said to be unavailable as some of them had left the addresses furnished. The prosecution had marked as many as 108 documents, apart from 48 material objects. Thereafter, the statement of the accused, under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.P.C.', for brevity) having been recorded, the court below had framed the following points for consideration:

"1. The accused during December 2005 came to Gulbarga and instigated the Muslim students to become member of Lashkar-E-Toiba prohibited organisation under the pretext of Jihad and tried to conspire them to commit offences against the government of India and after collecting the Pistols, Bullets, Hand-grenades from Ahmedabad in furtherance of his object of waging war against the government came down Gulbarga by Chennai-Mumbai train on 30.03.2006 at 3-50 p.m., and thereby committed an offence punishable under section 121(A) and 124(A) of Indian Penal Code?

2. That the accused being the member of Lashkar-E-Toiba a prohibited terrorist organisation undergone training in Pakistan in 2003, about using of AK-47, T.T. Pistol all types of guns, using of grenades bombs and also training in rocket preparation and its launching, preparation of timer bomb, hydrogen bomb and engaging anti-national activities against government of India into and also learnt in the Ravalpindi training centre about using of computer, E-Mail, Internet, map-reading, horse riding, Radio and wireless attempted to commit and national activities in India and thereby committed an offence punishable under section 121 of Indian Penal Code?

3. That the accused being the member of said Lashkar-E-Toiba had possessed the Pistol, Grenades without having valid license with in intention to use them waging war against the government of India and thereby committed an offence punishable under section 25 of Indian Arms Act and section 4 & 5 of Explosive Rules 1908 and Section 9(B) of Act 1884?

4. That the accused being the member of prohibited terrorist organisation took part in meeting of unlawful organisation in various parts of the country like Bombay, Ahmedabad, Hyderabad, Gulbarga of India and also Ravalpindi of Pakistan only with sole intention of encouraging Ahle Hadis Muslim students to join unlawful organisation of Lashkar-E-Toiba and in the pretext of Jihad to wage-war against the India and thereby committed an offence punishable under section 10, 13, 18, 20, 21 and 23 of Unlawful Activities 1967 (amendment Act 2004)?"

Point Nos. 1 to 3 were answered in the affirmative and Point No. 4 in the negative and the accused was found guilty for the offences punishable under Sections 121, 122 and 124-A of the IPC, Section 25 of the Arms Act, 1959 and Sections 4 and 5 of the ES Act and was acquitted for the offence punishable under the provisions of the UAP Act, mentioned above. And he was sentenced to imprisonment for life on several counts and also to pay a fine of Rs. 25,000/- in respect of those offences, namely, for the offence punishable under Section 121, similarly for the offence punishable under Section 122, and for the offence punishable under Section 124-A of the IPC. He was also sentenced to undergo imprisonment for five years and to pay a fine of Rs. 25,000/- for the offence punishable under Section 25 of the Arms Act. Apart from imprisonment for life and fine of Rs. 25,000/- for offence punishable under Section 4 of the ES Act and also to undergo imprisonment for life and to pay fine of Rs. 25,000/- for the offence punishable under Section 5 of the ES Act.

It is that judgment which is under challenge in the present appeal.

3. The learned counsel for the appellant would contend that there is no valid sanction obtained in initiating proceedings against the appellant under the provisions of the UAP Act. Attention is drawn to Section 45 of the UAP Act. In the absence of any previous sanction as provided therein, the entire proceedings were vitiated. He would contend that there is a document produced as Exhibit P. 98, which is an order passed by the District Magistrate at the behest of the Investigating authority, granting permission to present the charge sheet against the appellant, in respect of the alleged offences committed under the provisions of the UAP Act, the IPC, the ES Act and the Arms Act. The District Magistrate was not an officer authorised by the Central Government or the State Government to grant such prior sanction in respect of offences punishable under the UAP Act.

It is submitted that there is a Notification duly published in the Gazette of India dated 21.6.2007, whereby the Central Government has, in exercise of power conferred under Section 45 of the UAP Act, authorised the Secretaries of the State Government to exercise powers to sanction prosecution in respect of offences punishable under Chapter-III of the said Act. Even the said Notification, which was issued subsequent to the so-called sanction obtained in the present case on hand and therefore, there was no valid sanction in initiating proceedings against the appellant.

It is also contended that the proceedings against the appellant are vitiated for yet another reason. In the present case on hand, the initial investigation is conducted by a Police Inspector and the subsequent investigation by an Additional Superintendent of Police, which is also opposed to Section 43 of the UAP Act.

It is pointed out that the prosecution has not at all made out a case against the accused in the manner as alleged, as can be seen from the following infirmities:

There is an inordinate delay in lodging the FIR and the delay not having been explained by any acceptable and cogent reason, it would prove fatal to the case of the prosecution. The law is settled in this regard by a Constitution Bench judgment of the Supreme Court in Lalita Kumari vs. Government of UP, MANU/SC/1166/2013 : (2014) 2 SCC 1.

It is pointed out that there are no eye witnesses examined at the trial in respect of any alleged illegal activity carried on by the appellant. There are a host of witnesses who have turned hostile and therefore have completely diluted the case of the prosecution. Namely, P.W. 3, an auto driver who was examined as a panch witness in respect of Exhibit P. 8, namely, the spot mahazar. P.W. 5, the owner of an Internet Browsing Centre, where the appellant had allegedly sent and received the coded messages. As also P.W. 6, who was employed in the said Internet Browsing Centre and he has denied his statement recorded at Exhibit P. 10. P.W. 8, who was running a footwear business located near the Station Bazar Police Station, Gulbarga, was a panch witness to Exhibit P. 11, the spot mahazar, in respect of the alleged defusing of a bomb that was being carried by the appellant. P.W. 9, a student whose statement had been recorded at Exhibit P. 12, to the effect that the appellant was known to visit the Internet Browsing Centre, belonging to his brother-in-law, had resiled from the statement. P.W. 10, another employee of the Internet Cafe had denied the statement at Exhibit P. 13 of having seen the appellant. P.W. 17, a panch witness in respect of the seizure mahazar pertaining to material objects, M.Os. 10 and 11. P.W. 19, an auto driver had denied the statement in Exhibit P. 8 as regards the arrest of the appellant.

It is further pointed out that the evidence of P.Ws. 15, 21 and 24 do not support the case of the prosecution. It is further pointed out that the prosecution has relied heavily on the report that was obtained after having conducted the brain mapping and a narco-analysis test on the appellant in eliciting information from him, which is clearly in total violation of the law as laid down by the Supreme Court in Selvi vs. State of Karnataka, MANU/SC/0325/2010 : AIR 2010 SC 1974.

It is pointed out that the allegations were the same in respect of the offences alleged under the provision of the UAP Act as well as the provisions of the IPC. The offences punishable under Sections 122 and 124A of the IPC were held proved. The offence alleged under Section 120-B of the IPC was not even pressed and was dropped by the prosecution at the initial stage itself. It is hence inexplicable that the appellant having been acquitted of all the offences punishable under the UAP Act, could be convicted, on the same set of facts and on the same set of allegations, under the IPC. The reasoning of the trial court in this regard is, therefore, irreconcilable and inexplicable.

The serious allegation of the appellant being a terrorist, who was trained in Pakistan not having been proved, it cannot be said that the appellant could be convicted merely on surmises without any material evidence. The reasoning of the court below is hence perverse and without any foundation and has resulted in a gross miscarriage of justice.

In the face of the finding of the court below that the appellant was not proved to be a member of the LeT and having been acquitted of the offences punishable under the UAP Act, the appellant could not have been convicted for the offences punishable under Sections 121, 122 and 124A of the IPC. In the absence of any evidence, that the appellant was a member of any terrorist organisation or any other organisation, which was banned by a Notification issued by the Central Government of India, the trial court's reasoning that the appellant had come to Mumbai unauthorisedly is without any basis.

P.W. 36, the Additional Superintendent of Police, had categorically admitted that he was unable to collect materials to show that the appellant had undergone training in Pakistan and there was no corresponding entry in the passport of the appellant about his entry into India and therefore, there was no basis for the conclusion that the appellant had illegally entered India.

Insofar as the appellant having been convicted under Sections 4 and 5 of the ES Act, a panch witness P.W. 25 has not stated about the seizure of any hand grenades and therefore there was no evidence to indicate that the appellant was in possession of explosive substances. The only statement made by P.W. 25 was that a pistol was seized from the appellant.

Insofar as the appellant being funded as a terrorist through P.Ws. 1, 11 and 12, who have spoken about such money transfers from abroad to the appellant in India, there is no evidence produced to demonstrate that the source was from any criminal or a member of a banned organisation. The literature seized were claimed to be incriminating material. Except the allegation that the books seized were in Urdu, there was no evidence about the contents of the books being incriminating. The witnesses examined to establish that the appellant was given to making provocative speeches after 'namaz' at the mosques that he visited for prayers, had turned hostile, namely, P.Ws. 3, 5 and 6. Even P.W. 7 had merely stated that he had visited the mosque for prayers, which could not be termed as an offence. It is pointed out that P.Ws. 8, 9 and 10 had also turned hostile.

It is also contended that the evidence of P.W. 13 was to the effect that he had seen a bomb being defused and even at that point of time a panchnama was drawn up and was marked as Exhibit P. 11, but however, the presence of the appellant is not mentioned nor of the complainant who was the Police Inspector. Nor is it indicated that the Police Inspector had sought the assistance of any expert before opening the bag containing hand grenades in the police station itself, though it is stated by P.W. 27 that the appellant had informed him that it would be dangerous to open the bag. Therefore, the circumstance sought to be made out by the prosecution as to the bomb being defused is seriously doubtful as to whether the same was seized from the possession of the appellant.

It is also pointed out that the evidence of P.W. 14, who was said to be the owner of a house at Zahirabad, where the appellant had stayed for 26 days, by itself would not establish that the appellant had committed any crime.

It is further pointed out that from a reading of the evidence of P.W. 15, who had stated that the appellant had visited a mosque at Hyderabad on two occasions and insisted on addressing a gathering, it is seen that he has not tendered any evidence to the effect that the appellant had even remotely suggested that a war was to be waged against the Union of India or any such similar speech inciting the congregation to indulge in terrorist activities.

P.W. 16, a Head Constable was examined to translate the contents of Exhibit P. 15A into the Kannada language. The translation did not disclose the name of the appellant nor that he was the author nor was there any evidence on record that the same had been distributed by the appellant and that the contents of the document signified the indication to involve youth of his community in terrorism.

P.W. 20 was a panch witness to the panchnama at Exhibit P. 16 pertaining to the search and seizure of the material in the house of the appellant. It is significant that no incriminating material had been seized. Therefore, it is contended that the above as well as other infirmities would indicate that the trial court has convicted the appellant and has sentenced him to life imprisonment with fine, only on suspicion and presumptions, which the prosecution had freely urged as being established facts and which the trial court has mechanically accepted. The learned counsel, therefore, seeks the acquittal of the accused.

4. The learned Additional Public Prosecutor, on the other hand, seeks to justify the impugned judgment.

It is contended that insofar as the primary objection that the proceedings initiated against the appellant under the provisions of the UAP Act were initiated for want of prior sanction of the competent authority, is an objection that is being raised for the first time in the present appeal and therefore, would no longer be a valid contention, as the prosecution has ultimately established its case to the satisfaction of the court below on the basis of the cogent material evidence as to the offences alleged. Even if it could be said that want of sanction has vitiated the proceedings, it would be necessary for the appellant to further establish that this want of sanction has lead to a failure of justice to the prejudice of the appellant. Whereas on the other hand, the accused has been acquitted of the offences punishable under the UAP Act and therefore is no longer relevant. Whereas the offences in respect of which the appellant has been convicted under the IPC, the Arms Act, and the ES Act, it is the District Magistrate who is the competent authority and therefore, there is no infirmity in this regard.

Insofar as the contention that the initial investigation was conducted by a Police Inspector and further, the investigation was not conducted by a competent officer does not also hold water, for the UAP Act requires that the investigating authority should not be an officer below the rank of the Deputy Superintendent of Police. Admittedly, the Investigating Officer, in the present case on hand, was the Additional Superintendent of Police and he was certainly not below the rank of the Deputy Superintendent of Police. The initial investigation having been conducted by the Police Inspector was inevitable, as the accused was apprehended on suspicion at the Gulbarga Railway Station and it is practically not possible to ensure that an officer not below the rank of a Deputy Superintendent of Police is readily available at all times in order to ensure compliance of the provision to such a degree. Therefore, there is no infirmity in the initial steps having been taken by a Police Inspector and when practically, the entire investigation having been conducted by the Additional Superintendent of Police.

The learned Additional Public Prosecutor would further contend that it is a fallacy to proceed on the footing that the provisions of the UAP Act and the IPC are in pari materia and therefore, if the appellant was acquitted under the UAP Act, he was also entitled to be acquitted of the offences punishable under the IPC, as there are marked differences in the tenor and language of the above relevant provisions and therefore, the court was justified in arriving at its findings.

The learned Additional Public Prosecutor would thus take us through the record to demonstrate that though several witnesses had turned hostile and not supported the case of the prosecution, there was adequate material evidence which remained un-impeached and therefore the court below having accepted the case of the prosecution cannot be faulted and hence seeks dismissal of the appeal.

5. Having regard to the rival contentions and on a careful examination of the record, it is to be examined whether the trial court was justified in holding that the prosecution had established its case beyond reasonable doubt and whether the trial court was justified in acquitting the accused in respect of the charges of offences punishable under the UAP Act, while convicting the accused for offences punishable under the IPC. In that, the significant ground urged on behalf of the appellant is that the provisions of the UAP Act, in respect of which, the appellant was sought to be prosecuted and the provisions of the IPC under which he has now been convicted are of almost the same tenor. In other words, the provisions of the two statutes were invoked on the same set of facts and if the trial court was of the opinion that those facts were not proved in respect of the UAP Act, whether it can be reconciled against the finding of the trial court that offences punishable under the IPC have been established to have been committed by the appellant.

Therefore, we may first notice the tenor and language of the respective provisions of the IPC as well as the UAP Act.

The relevant provisions that are invoked under the UAP Act and the relevant provisions under the IPC are reproduced hereunder for ready reference in a tabular form:

UNLAWFUL ACTIVITIES (PREVENTION) ACT,1967

INDIAN PENAL CODE,1860

SECTION

DESCRIPTION

SECTION

DESCRIPTION

10

Penalty for being member of an unlawful association, etc., where an association is declared unlawful by a notification issued under section 3 which has become effective under sub-section (3) of that section (a) a person who - (i) is an continues to be a member of such association; or ii) takes part in meetings of such association; or (iii) contributes to, or receives or solicits any contribution for the purpose of, such association; or (iv) in any way assists the operations of such association, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine; and (b) a person, who is or continues to be a member of such association, or voluntarily does an act aiding or promoting in any manner the objects to such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or caused significant damage to any property,- (i) and if such act has resulted in the death of any person, shall be punishable with death or imprisonment for life, and shall also be liable to fine; (ii) in any other case, shall be punishable with imprisonment for a term which shall not be less that five years but which may extend to imprisonment for life, and shall also be liable to fine.

120A

Definition of criminal conspiracy.--When two or more persons agree to do, or cause to be done,--(1) an illegal act, or(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]

13

Punishment of unlawful activities - (1) Whoever - (a) takes part in or commits, or (b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine (2) Whoever, in any way, assists any unlawful activity of any association declared unlawful under section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (3) Nothing in this section shall apply to any treaty, agreement or convention, entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India.

124A

Sedition.--Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation 1.--The expression "disaffection" includes disloyalty and all feelings of enmity. Explanation 2.--Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.--Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]

18

Punishment for conspiracy, etc -Whoever conspires or attempts to commit, or advocates, abets, advises or [incites, directs or knowingly facilitates] the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than 5 years but which may extend to life, and shall also be liable to fine. 18A Punishment for organising of terrorist camps. - Whoever organizes or causes to be organized any camp or camps for imparting training in terrorism shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. 18B. Punishment for recruiting of any person or persons for terrorist act - Whoever recruits or causes to be recruited any person or persons for commission of a terrorist act shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

20

Punishment for being member of terrorist gang or organisation-Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.

21

Punishment for holding proceeds of terrorism - Whoever knowingly holds and property derived or obtained from commission of any terrorist act or acquired through the terrorist fund shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine

23

Enhanced penalties - (1) [If any person with intent to aid any terrorist or a terrorist organisation or a terrorist gang contravenes] any provision of, or any rule made under the Explosives Act, 1884 (4 of 1884) or the Explosive Substances Act, 1908 (6 of 1908) or the inflammable Substances Act, 1952 (20 of 1952) or the Arms Act, 1959 (54 of 1959), or is in unauthorised possession or any bomb, dynamite or hazardous explosive substance or other lethal weapon or substance capable of mass destruction or biological or [chemical substance of warfare or high quality counterfeit Indian currency, he shall], notwithstanding anything contained in any of the aforesaid Acts or the rules made thereunder, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. (2) [Any person who with the intent to aid any terrorist, or terrorist organisation or a terrorist gang] attempts to contravene or abets, or does any act preparatory to contravention of any provision of any law or rule specified in sub-section (1), shall be deemed to have contravened that provision under sub-section (1) and the provisions of that sub-section in relation to such person, have effect subject to the modification that the reference to "imprisonment for life" therein shall be construed as a reference to "imprisonment for ten years".

The trial court has addressed points No. 1 to 3 framed by it for consideration together, namely, the prosecution was required to establish that the appellant had come to Gulbarga as on 30.3.2006 and his intention was to instigate Muslim Youth to become members of the LeT and to conspire to overthrow the Government of India and therefore, he had come with a pistol, live bullets and hand grenades from Ahmedabad by the Chennai - Mumbai Train and had alighted at Gulbarga at about 3.50 p.m. on 30.3.2006 and thereby had committed offences punishable under Section 121A and 124A of the Indian Penal Code, 1860. Further that he was a member of the LeT and that he had undergone training in Pakistan in the year 2003 in the use of sophisticated fire arms and other arsenal and was also trained in launching rockets, preparation of time bombs, hydrogen bombs (sic) and engaging in anti-national activities against the Government of India and had also undergone training in Pakistan in the use of electronic machinery, horse riding, cartography, radio and wireless operations and he had attempted to commit anti-national activities in India and thereby committed an offence punishable under Section 121 of the IPC. Further, that as a member of the LeT was in possession of a pistol and grenades, without holding a valid licence with an intention to use the same in waging war against the Government of India and thereby had committed offences punishable under Section 25 of the Indian Arms Act and sections 4 and 5 of the ES Act (Though incorrectly indicated in the judgment as 'Explosives Rules, 1908') and Section 9B of the Explosives Act, 1884.

In answering the above points in the affirmative, the reasoning of the trial court commencing at Paragraph-8 of the judgment, refers to admitted facts, which the accused is said to have admitted while making his statement under section 313 of the Code of Criminal Procedure, 1973, to the effect that he was a resident of Jogeshwari area of Mumbai and that P.W. 26 was a childhood friend and he would address the appellant as 'Babubhai' and he had studied up to Pre-University Course and that he was married in Goa. It was stated by the said witness, P.W. 26, about the appellant's stay for a year in Oman and his return to India. Also about his visit to Saudi Arabia and on his return to India, the appellant having become vociferous about the oppression of Muslims in India in relation to the incidents at Gujarat, Mumbai and Babri Masjid. And that he never missed a chance to voice his views to people on all occasions. He had stayed in the house of one Syed Khasim, P.W. 14, at Zahirabad in Andhra Pradesh for 26 days on a monthly rent of Rs. 1,000/-. He was said to be dealing in toys and that he was regularly attending 'namaz' at a mosque in Hyderabad and that he had frequently argued with the elders of the mosque on account of his not following certain rules, such as covering his head inside the mosque.

The appellant had drawn a sum of Rs. 50,000/- in cash, which had been transferred from Saudi Arabia, through M/s. Shriram Finance, Gulbarga, on 20.12.2005 under three separate challans for Rs. 16,000/- and a sum of Rs. 17,000/- and a further sum of Rs. 17,000/-, as there was a restriction to draw more than Rs. 20,000/- at a time. He had also drawn a further sum of Rs. 7,500/- on 24.1.2006, also originating from Saudi Arabia through M/s. Shriram Finance, Gulbarga. P.Ws. 1, 11 and 12 have spoken about the money transactions namely, that there was money transfer from Saudi Arabia to Gulbarga, favouring the appellant.

It is observed by the trial court that the appellant used to offer prayers at a mosque near Station Bazar, Gulbarga and P.W. 7, a fruit and egg seller, was a witness to the visits by the appellant to the mosque. The appellant was said to be residing in the house of P.W. 4 at Galib Colony, Gulbarga and he had introduced himself as a Car door Mechanic, who had come from Goa. He had stayed there for about 3 months along with his wife and sister. The appellant is also said to have admitted that he was produced before the court by the Police on 31.3.2006 and he was again sent to police custody for 10 days and thereafter he was taken to his rented house at Zahirabad, Gulbarga and yet another rented house of P.W. 14. He had further admitted that he was subjected to brain mapping examination on 6.4.2006 and he was then taken to Goa and on 10.4.2006, his police custody was extended for seven days. Towards the end of his statement under Section 313 of the Cr.P.C., he had claimed that he had been arrested in his rented house on 16.3.2006 itself, and he was kept in illegal custody by the Police for 15 days along with five others, during which period, he was said to have been tortured by the Police. Accused No. 1 claimed that he belonged to Ahle Hadis sect and persons from other muslim sects such as the shiyas had implicated the appellant in a false case labelling him an anti-national element. He had declared that he was a patriot, who would do anything for India, even sacrifice his life.

The trial court has then held that the evidence of P.W. 26 and P.W. 14 as well as P.W. 4 has established the fact that the appellant was initially a resident of Mumbai, who completed his Pre-University course and went to Oman 10 years ago and that after his return from Oman, his demeanor and attitude had changed and he was given to launching into speeches about Islam, at any gathering where he was present and that he had stayed at Hyderabad and Gulbarga in rented houses and that he was receiving funds from Saudi Arabia stood established.

Further, it was held that insofar as the appellant regularly attending 'namaz' wherever he was residing, was also established through the evidence of P.W. 24, who has spoken about the appellant visiting the mosque at Baliya in Mumbai and about his rendering speeches on jihad. As also the appellant having attended Fatiya Dharawaza mosque of Hyderabad, as stated by P.W. 15 and P.W. 21, who have also reiterated that he was given to making speeches about jihad and that the elders in the mosque had objected to his views and the further conduct of the appellant insisting on not covering his head when inside the mosque. P.W. 7 had tendered evidence about his attending the mosque in Gulbarga.

It is noticed by the trial court that P.Ws. 5,6, 9 and 10 were treated as hostile witnesses by the prosecution and those witnesses were sought to be examined by the prosecution to establish the presence of the accused in Internet Browsing Centres at Thimmapur Chowk, Gulbarga. It is further noticed by the court below that P.W. 30, who was operating the Computer Training Centre at Gulbarga, had stated that on 14.4.2006, on the instructions of the Investigating Officer, he had visited the Cyber Cafe at Thimmapur Chowk and noticed the presence of the accused with the Police and thereafter he was called upon by the Police to open the mailbox of the appellant using his username and password, which was provided by the appellant and thereafter had taken print outs of the e-mail particulars, as per Exhibits P. 24 to P. 28. Thereafter, he had signed the sheets of the print outs, which were seized by the police under a mahazar, Exhibit P. 29. These print outs were said to be in code language which the Police had got deciphered. Apart from which, Exhibit P. 27 was a map of the Hydel Power Plants in Andhra Pradesh and Exhibit P. 28 was a message in Hindi transliterated in English as follows:

And such messages were found in many of the exhibits and the words contained in Exhibit P. 24 were decoded as 'Bangladesh, Bombay, Hyderabad' etc.

The court has found that Exhibits 54, 49 to 71 disclosed that digits were used to refer to chemicals used in the manufacture of explosives and it was described in its proportionate quantity and the words used were interpreted as 'Potassium Carbonate', 'Sodium Nitrate', 'Aluminium Nitrate', 'Aluminium powder', 'Nitric acid' etc., with instructions to use the same for its preparation.

Further, the trial court has referred to the evidence of P.W. 35 and P.W. 27, who were Police Inspectors attached to the Station Bazar Police Station and Roja Police Station of Gulbarga and both of them were on special duty at the Gulbarga Railway Station, keeping watch on the railway passengers and they had noticed the accused alight from the Chennai Bombay train and observed that he was moving in a suspicious manner and from his body language, the officers suspected that there was something amiss and when he came towards them, they had immediately accosted him and sought to inspect his bag, which he was carrying and it was stated by the appellant that he had come to Gulbarga on a visit and that he was from Goa and when they tried to open his bag, the accused had told them not to open the bag as it was dangerous and that it contained a grenade. Immediately, P.W. 35 had secured the presence of panch witnesses and the bag was opened. There were 23 books of Urdu literature, 5 audio cassettes, 1 video cassette, 2 hand grenades, 1 pistol, 6 live bullets and 1 magazine along with the clothes of the appellant and the same were seized and marked under seizure mahazar Exhibit P. 21. Of the said books, one was a tourist guide and one contained the photographs of the lithographs of Hindu gods, temples and animals, all of which were defaced. M0.43 contained the recorded speeches by persons against India and the United States of America. P.W. 35 had immediately sent the two hand grenades to the District Armed Reserve Police Armoury and prepared a report, which was treated as a complaint and a case was registered against the accused and he was sent to the District Hospital for a medical examination. Later, the appellant was taken to Ahmedabad, since the appellant claimed to have brought the arms and ammunition that he was carrying, from Ahmedabad and he is said to have shown places from where he had obtained the hand grenades and pistol. A spot mahazar had been prepared under Exhibit P. 93. The trial court has held that P.Ws. 25, 27 and 35 could not be disbelieved, as particularly, the accused had not suggested that the Material Objects. M.Os. 18 to 48 did not belong to him or that they were not seized from his possession. Therefore, the court has concluded that the prosecution had established the apprehension of the accused at the railway station and also the seizure of the material objects from the appellant.

P.W. 31, a Scientist at the Forensic Science Laboratory had deposed about the examination of Material Objects M.Os. 2 to 8 and which were found to be explosive substances.

P.W. 32, another Scientist of the Forensic Science Laboratory, Bengaluru had identified the pistol that was seized from the appellant as having been manufactured in Spain along with live bullets and a magazine.

P.Ws. 16 and 28 had translated the Urdu literature into Kannanda.

P.W. 20 was a panch witness to the material seized in the rented houses where the appellant had stayed and had seized M.Os. 12 and 13, which were ten in number and were hacksaw blades and M.O. 14 was a cutting-plier, along with M.O. 15, which were 16 books, marked together and M.O. 17, a map. All of which were seized under mahazar Exhibit P. 16.

P.Ws. 2 and 17 have spoken about the seizure of books in the house of the father-in-law of the accused at Goa and the evidence of those witnesses was not seriously challenged.

P.W. 33 was a hand-writing expert, who was examined to identify the signatures and compare the same with the specimen signature of the appellant in the various documents that were sought to be proved, as for instance, money transfers from Saudi Arabia to the appellant. The court has held that the evidence of that witness is to be accepted.

The Investigating Officer has deposed as P.W. 36, who has referred to the incriminating materials, which the prosecution had contended, were materials, which create hatred towards non-Muslims to overthrow the Government of India. The said witness had also deposed of the appellant's visit to Saudi Arabia as seen from the entry in his passport and about the movements and conduct of the appellant as well as the communication through e-mail in coded language. Apart from the appellant being found with the arms and ammunition to establish that his intentions were to carry out terrorist activities. Therefore, the trial court has observed that merely because some of the mahazar witnesses have turned hostile, there was no warrant to discard the evidence of other experts, the police officers and other witnesses, who have supported the case of the prosecution, which would be sufficient to draw an inference that the appellant had an abnormal attitude and in the absence of any explanation for the appellant to be in possession of the said incriminating material, there was a case made out by the prosecution.

It is incidentally noticed that it is not in dispute that the appellant was subjected to brain mapping and Narco Analysis Test, but the person who had conducted the test was not tendered as a witness before the court and none has been examined to explain the report of the brain mapping and Narco Analysis Test.

The trial court has then proceeded to examine that given the above circumstances, which stood established against the appellant, whether the acts of the appellant could be termed as offences, with reference to M.O. 43, namely, 5 audio cassettes, which contained speeches instilling zihad in Urdu and aimed against India and the United States of America. Similarly, the translated material Exhibit P. 23 which referred to incidents in Bombay, Gujarat and Babri Masjid, which were all violent acts against the Muslims by non-Muslims. The appellant was intending to instigate Muslims against the Hindus in the name of the jihad and decoded e-mails also indicating that there were plots to target sensitive installations, like power stations and dams, which was unusual for a toy dealer or a car door Mechanic or even as a priest, as the appellant ambiguously claimed himself to be, to use code words and carry arms apart from other incriminating material, all of which could only raise one presumption that the appellant could be safely convicted for an offence punishable under Section 124A of the IPC.

The trial court has however found that P.W. 36 had candidly admitted that he had not collected any material to show that the accused underwent training in Pakistan and that he had come to India from Pakistan, as the passport did not indicate any such details.

The trial court has found that the substantial amounts which the appellant had drawn, all of which had been funded from Saudi Arabia, would attract the ingredients of Section 121 of IPC. It is also found by the trial court that the brain mapping and Narco Analysis Test had yielded information about places from where the accused collected the pistol and hand grenades and the same were intended to cause loss to public property of the country and therefore was an offence punishable under section 122 of the IPC.

Further, the possession of the pistol, live bullets and hand grenades, which were not licensed, would tantamount to an offence committed by the accused under Section 25 of the Arms Act. There was also no explanation from the accused as to how he acquired those weapons and since he was caught red-handed at the Railway Station with such explosive substances, he had committed offences punishable under Section 4 and 5 of the ES Act.

Insofar as point No. 4 is concerned, namely, that the appellant was a member of a terrorist organisation and that he had participated in meetings of such organisation in various parts of the country and also in Pakistan, which was with a sole intention of encouraging the Ahle Hadiz Muslims to join the LeT and in the name of jihad, to wage war against India and hence had committed offences punishable under Sections 10, 13, 18, 20, 21 and 23 of the UAP Act is concerned, the court has found that there was no material to support the said allegations.

It is in this manner that the trial court had proceeded to acquit the accused of the offences punishable under the provisions of the UAP Act, while convicting him as aforesaid, for offences punishable under the provisions of the Indian Penal Code, 1860, the Arms Act, and the ES Act.

It is evident that there was no prior sanction obtained from the competent authority in having initiated proceedings for offences punishable under the provisions of the UAP Act. Though the District Magistrate was competent to grant sanction in respect of the other offences alleged under the provisions of the IPC, the Arms Act and the ES Act. However, no such objection was raised on behalf of the appellant at any stage of the proceedings before the trial court. It is only in the present appeal, at the time of final hearing, that such objection is raised. It is not even urged as a ground in the memorandum of appeal. Further, it would also be incumbent on the appellant to demonstrate that the want of prior sanction has resulted in a failure of justice. In any event, the appellant has been acquitted of the offences punishable under the provisions of the UAP Act. Hence, the appellant cannot be said to be prejudiced on that count.

No doubt that there is several hours delay in filing the First Information Report, however, it is not such inordinate delay that would prove fatal to the case.

The further objection that the trial court having found that the prosecution had not made out a case against the appellant for any of the offences punishable under the UAP Act, could not find the appellant guilty of offences punishable under the provisions of the IPC, on the same set of facts - may not survive for consideration in the light of the opinion formed hereunder.

The objection as regards the initial investigation being by an officer, who was not competent, is also no longer relevant as the appellant has been acquitted of the offences alleged under the UAP Act. In any event, this was inevitable given the circumstances of the case. The matter has been handed over to a competent officer at the earliest.

On the merits of the case, we proceed to examine the reasoning of the court below.

It is seen that the testimony of PW 26, a childhood acquaintance of the appellant has not spoken about the avocation of the appellant. The witness has spoken about the appellant's visit to Oman for a year and a further visit to Saudi Arabia, in search of work. It was his opinion that the appellant had on each occasion returned with very strong views about the oppression suffered by the muslim community in India and would constantly air his views in any gathering, including at a game of cricket. He has not spoken about any terrorist activity of the appellant.

The trial court had refused to grant time to the counsel for the appellant, to cross examine the above said witness and he was discharged.

P.W. 14, the landlord of the tenement, where the appellant is said to have stayed for a brief period of 24 days, has not provided any incriminating information about the appellant. He has merely emphasized that the appellant was regularly attending namaz.

P.W. 1, P.W. 11 and P.W. 12, were employees of M/s. Shriram Finance Co., through which money had been transferred from Saudi Arabia to India and they had confirmed that the same had been drawn by the appellant. There is no attempt on the part of the prosecution to demonstrate that the sender was an agent of any terrorist outfit. The money transfer was not otherwise illegal.

P.W. 7 has merely stated that he had seen the appellant visit the mosque, next to which he had a stall, about 3 times to offer prayers.

P.W. 4 was yet another landlord, in whose tenement the appellant had stayed for about 3 months, along with his wife and sister. There is nothing elicited from the witness to demonstrate that the appellant was engaged in illegal activity.

The trial court's finding that P.W. 15, P.W. 21 and P.W. 24 have in their testimony clearly implicated the appellant as having propagated jihad at every namaz that he attended at Hyderabad and Mumbai, is an incorrect finding. It may be seen that P.W. 15, on the other hand, has stated that the appellant was prevented from making any kind of speech at the mosque where he had seen him offering prayers, and that he was unceremoniously sent out.

P.W. 21 had stated that there were two sects in their community and the appellant belonged to the other sect who were however permitted to offer their prayers commonly. He had further stated that there were minor variations in their practices at prayer and the appellant had insisted that his sect's practices be followed, over which there were arguments with the elders of their community.

P.W. 24 has stated that the appellant had spoken about the muslim religion and about jihad at a mosque in Mumbai. And it was stated in cross-examination, that the appellant was interpreting jihad as written in the Kuran.

However, none of the witnesses has stated as to what jihad is and what it means. The evidence of the above witnesses certainly does not establish that the appellant had incited others to wage war against India and to overthrow the government.

The incriminating material said to have been gathered from the computer used by the appellant to browse the internet and send and receive messages in code language, from a particular cyber cafe, is said to have been accessed by P.W. 30, at the instance of the police, on the appellant furnishing the username and password used by him. But the fact of the appellant having visited the said centre and having used the machine, has not been corroborated by P.W. 5, P.W. 6, P.W. 9 and P.W. 10, who were persons said to have been in charge of and working at the said computer centres. They were treated as hostile witnesses. Further, the evidence that was gathered with the assistance of P.W. 30 is not in consonance with Section 65-B of the Indian Evidence Act, 1872. Further, it is not clear as to the manner in which the coded messages had been de-codified and the witness who had performed this task and his expertise in the said field. There was however, no evidence produced to show that the appellant was a member of a terrorist organization and he was being funded by any such organization.

The Urdu literature said to have been seized from the appellant has been translated by P.W. 28, as per the report at Exhibit P. 23. The contents of the same are as follows:

On curiously going through the books and leaflets, I discern most of the books to be based on Islamic religion while subjects in a few magazines and leaflet speak of the problems faced by the muslims and "solutions" thereof as briefly shown here below. This is to the best of my knowledge and understanding of urdu Language.

With regards

Yours faithfully

Sd/-

29-5-06"

According to the above translated version, the muslims are called upon to awake to the problems faced by them as a minority in India. There is reference to oppression by right wing forces professing "Hindutva" and the threat that the muslims constantly face from them.

Apart from the above, the literature recovered were several religious books on prayer and other books on Hell, Cleanliness, Heaven, Faith, Magic, 'RasooF, Common sense and Purdah.

Yet another pamphlet in Urdu translated into the Kannada language by P.W. 16 at Exhibit P. 15 is also an eulogy extolling the virtues of Islam and the magnificence of the Quran. Apart from a clarion call to muslims to wake up to the danger of being subsumed by the Hindu majority in India.

Hence, the above documents do not establish that the appellant was seeking to wage war against India and intended to overthrow the establishment.

However, as per Exhibits P. 30 and P. 33, it was established that the pistol said to have been recovered from the appellant was in working order and that the bullets and magazine were meant for the pistol and that the two grenades contained Penta Erythritol Tetra Nitrate (PETN).

Admittedly, the bulk of the allegations against the appellant are hence not on the basis of independent material evidence, but is apparently on the basis of revelations said to have been made by the appellant, while in a drug induced state when polygraph, brain mapping and narco analysis tests were resorted to in extracting information from the appellant. Though seemingly incriminating reports are placed on record, the person who had conducted these tests was never examined as a witness. However, the reports are marked as Exhibits P-95 to P-97. The said reports cannot also be relied upon as the same is violative of the law as laid down by the Apex Court in Selvi & others v. State of Karnataka, MANU/SC/0325/2010 : AIR 2010 SC 1974. Compulsory involuntary administration of the Narco-analysis, Polygraph examination and the Brain Electrical Activation Profile violates the right against self incrimination enumerated in Article 20(3) of the Constitution, as the subject does not exercise conscious control over the responses during the administration of the test.

Hence, it cannot be said that the prosecution had made out a case on the basis of the evidence on record that the appellant was guilty of any offence punishable under Section 121, 122 or 124-A of the IPC.

However, the appellant was found in possession of a pistol, live bullets, a magazine and 2 hand grenades. This is established through the evidence of the police and panch witnesses. There has been no suggestion that the said items were not seized from his possession. He had no licence or authority to carry the said articles. There was no explanation forthcoming for the possession of the same. Hence, the appellant having been convicted under Section 25 of the Arms Act and Sections 4 and 5 of the EP Act, 1908, cannot be found fault with. The conviction and sentence imposed under the said provisions are hence affirmed. The appeal is allowed in part.